Open Government Guide

Author

Foreword

The New Hampshire "right to know" law is contained within RSA Ch. 91-A, as amended, and is entitled "Access to Government Records and Meetings" (hereinafter "Statute").

The Statute was enacted in 1967. It received broad bipartisan support in the legislature and from the governor. During legislative consideration one state senator underscored the Statute's purpose and function in a democratic society:

The public has a "right-to-know" what its public servants are doing and how they are responding to the people who put them there. An informed and knowledgeable electorate is the life-blood of a democratic society. Ignorance on the other hand, breeds the type of situation which opens the door to those who would destroy the democratic process.

. . . I submit, Sir, that when an individual runs for or accepts a position of responsibility to serve the people, he should be ready to call his shots openly and without equivocation.

Another reason I favor this measure is because the press will be able to accurately report what has transpired on a given occasion and not garble, distort or misrepresent when they have to speculate or accept second hand information on a vote or decision of some governmental body.

Since enactment, the Statute has been amended on numerous occasions. In most of these instances, the amendments have clarified or broadened the scope of the Statute, for example, it now applies to electronic records in the transaction of governmental business.

One of the most significant amendments occurred in 1977, when the legislature added a preamble. It reads:

Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.

In New Hampshire, the public's right to know is further safeguarded by a state constitutional provision. In 1976 Part 1, Article 8 was amended to provide:

Government, therefore, should be open, accessible, accountable and responsive. To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted (emphasis added).

In any case where it is unclear whether a record or proceeding is covered by the Statute, the person seeking access should ground his request on Part I, Article 8.

Open Records

I. Statute

A. Who can request records?

1. Status of requester

Any person or entity may seek relief under the Statute. RSA 91-A:4 provides that "every citizen" has access to "public records" of public agencies and public bodies, while RSA 91-A:2 provides that "all persons" may attend public proceedings. In addition, RSA 91-A:7 provides that "any person" aggrieved by a violation of the chapter may petition the superior court for injunctive relief. Thus, there is no basis to believe that "citizen," in section 4, is a limiting term.

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

The Statute applies to “governmental records” maintained by “public agencies” and “public bodies” A “public agency'' means ‘any agency, authority, department, or office of the state or of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision.” RSA 91-A:1-a,V. A "public body'' means any of the following: “(a) The general court including executive sessions of committees; and including any advisory committee established by the general court; (b) The executive council and the governor with the executive council; including any advisory committee established by the governor by executive order or by the executive council; (c) Any board or commission of any state agency or authority, including the board of trustees of the university system of New Hampshire and any committee, advisory or otherwise, established by such entities; (d) Any legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto; (e) Any corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.” RSA 91-A:1-a,VI.

Specific Bodies Subject to the Statute.

See above for list of specific bodies. Further, the Statute covers a nonprofit corporation formed by an association of governmental entities to provide health insurance benefits for public employees. Professional Firefighters of N.H. v. Healthtrust Inc., 151 N.H. 501 (2004); Prof’l Firefighters of N.H. v. Local Gov’t Center, 159 N.H. 699 (2010).

Specific Bodies Not Subject to the Statute. The following are not subject to the statute:

The Governor. Only the Governor acting together with the Executive Council is subject to the Statute. RSA 91-A:1-a,VI(b). Records may be requested from the Governor based on Part I, Article 8 of the New Hampshire Constitution.

Courts: The Statute nowhere defines courts as public bodies, nor imposes upon courts any requirements of access or disclosure. Access to court records is provided by Part I, Articles 8 and 22 of the New Hampshire Constitution as interpreted by judicial decisions. The Associated Press v. State, 888 A.2d 1236 (2005), and cases cited.

1. Executive branch

The Statute covers public records maintained by executive branch employees only to the extent they maintain records on behalf of a public agency or public body, such as chair of the entity, executive director or record custodian.

Subject to some exceptions, the Statute most often exempts governmental records from disclosure based on the content of the record, not the function of the public agency or public body. But see, RSA 91-A:5,I and II, exempting the records of grand and petit juries, and parole and pardon boards; and RSA 91-A:6, exempting records of the Department of Employment Security.

2. Legislative bodies

The Statute’s definition of “public body” covers “[t]he general court [i.e., the New Hampshire House and Senate] including executive sessions of committees; and including any advisory committee established by the general court,” as well as “[a]ny legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto.” Nevertheless, in Hughes v. Speaker of the New Hampshire House of Representatives, 152 N.H. 276 (2005), the Court held that the Statute did not apply to a House and Senate conference committee on a bill concerning school funding. “[W]e hold that the public interesting in protecting the legislature’s prerogative to set its own procedural rules and engage in free and frank debate significantly outweighs the public’s right of access to the contested negotiations.” Id. at 295. The Court also held that whether the defendants had violated the Statute was “a non-justiciable political question.” Id. at 287. The plaintiff, a member of the House, claimed that the closed conference committee proceedings violated the Statute. See also, Union Leader v. Speaker, 119 N.H. 442 (1979)(Statute does not require disclosure of tape recording made by the House of Representatives).

3. Courts

4. Nongovernmental bodies

In Professional Firefighters of New Hampshire v. HealthTrust, Inc., 151 N.H. 501 (2004), the Court held that a quasi-public non-profit New Hampshire corporation formed by an association of 322 governmental entities to provide general health insurance benefits for public employees under a pooled risk management program was covered by the Statute. Accord, Professsional Firefighters of New Hampshire v. Local Government Center, Inc., 159 N.H. 699, 703 (2010); see, Union Leader Corp. v. N.H. Housing Fin. Author., 142 N.H. 540 (1997), holding that the Statute applied to the New Hampshire Housing Finance Authority, a distinct legal entity separate from the State.

5. Multi-state or regional bodies

The Statute defines “public body” to include “[a]ny corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.” RSA 91-A:1-a,VI.

6. Advisory boards and commissions, quasi-governmental entities

As discussed, the definition of “public body” covers advisory boards and commissions and the two Professional Firefighters cases hold that the Statute can apply to quasi-governmental entities. See RSA 91-A:1-a,VI.

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

The Statute applies to “governmental records,” which includes “any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term "governmental records'' includes any written communication or other information, whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body. The term "governmental records'' shall also include the term "public records.'' RSA 91-A:1-a,III. "Information'' “means knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.” RSA 91-A:1-a,IV.

“Governmental records must be made public unless they are exempted from disclosure by the Statute, see RSA 91-A:5 and 6, or by some other law.

The Statute provides for access to "notes, materials, tapes, or other sources used for compiling the minutes of [public] meetings," RSA 91-A:4, II, but these need only be kept until the minutes are approved. Brent v. Paquette, 132 N.H. 415 (1989).

Raw data collected by an agency subject to the act may not constitute a public record until it is compiled. Brent v. Paquette, 132 N.H. 415 (1989) (names and addresses of school children on separate response cards but not compiled into list were not public record). The Statute does not require public officials to retrieve and compile into one record information gathered from numerous documents, if a record of this information does not already exist. Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001); Brent v. Paquette, 132 N.H. 415 (1989).

Public records that contain confidential information or otherwise protected information (disclosure would constitute an invasion of privacy) are not exempt from disclosure because the information can be redacted. See Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001).

Note: RSA 91-A:9 makes it a misdemeanor for a person "who knowingly destroys any information with the purpose to prevent such information from being inspected or disclosed in response to a request under this chapter. RSA 641:7 makes it a misdemeanor to make false entries in public records, or to impair the "variety or availability" of records.

Consensual photographs taken by police department of people stopped but not arrested. N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437 (2003).

Settlement agreements made by public bodies or their insurers. RSA 91-A:4,VI.

"Records of any payment made to an employee of any public body . . . or to the employee's agent or designee, upon the resignation, discharge, or retirement of the employee, paid in addition to regular salary and accrued vacation, sick, or other leave." RSA 91-A:4, I-a.

Minutes of nonpublic sessions of public bodies must be disclosed unless protected by the exception within the Statute. RSA 91-A:3,II; see Orford Teachers Ass'n v. Watson, 121 N.H. 118 (1981) (school board).

All New Hampshire Department of Labor records that pertain to workers’ compensation claims. Premium Research Servs. v. New Hampshire Dep't of Labor, 162 N.H. 741 (2011).

Names of retired public employees who received payments from public employee retirement plan and amounts of those payments. Union Leader Corp. v. New Hampshire Ret. Sys., 162 N.H. 673, 34 A.3d 725 (2011)

Records related to alleged wrong-doing by county attorney if the investigation is conducted by a party that does not qualify as the attorney’s employer. Reid v. New Hampshire Attorney Gen., 169 N.H. 509 (2016).

Private notes of the secretary of a meeting beyond those used for creating the minutes. Brent v. Paquette, 132 N.H. 415 (1989).

Report of investigation of complaint of harassment made against a precinct employee. Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006)(exempt from disclosure under Statute’s exemption for “[r]ecords pertaining to internal personnel practices.” RSA 91-A:5, IV).

Names of residential customers, but not business customers, who had filed voltage complaints with a public utility and whose names were redacted from public reports released by the Public Utilities Commission. Lamy v. New Hampshire Professional Utilities Com’n, 152 N.H. 106 (2005).

Records subject to the work-product doctrine. New Hampshire Right to Life v. Dir., New Hampshire Charitable Trusts Unit, 169 N.H. 95 (2016).

2. What physical form of records are covered

Public agencies and public bodies that maintain governmental records in “electronic format” have the authority, “in lieu of providing original records, copy governmental records requested to electronic media using standard or common file formats in a manner that does not reveal information which is confidential under this chapter or any other law. If copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method, the public body or agency may provide a printout of governmental records requested, or may use any other means reasonably calculated to comply with the request in light of the purpose of this chapter as expressed in RSA 91-A:1. Access to work papers, personnel data, and other confidential information under RSA 91-A:5, IV shall not be provided.” RSA 91-A:4,V.

In Menge v. City of Manchester, 113 N.H. 533 (1973), the Court held that a records maintained in a computer storage system where subject to the Statute, and ruled that the city had to provide the requester with a computer tape of such records.

3. Are certain records available for inspection but not copying?

4. Telephone call logs

The Statute defines information to mean: "knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.” RSA 91-A:1-a,IV.

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

The Statute permits a public body that maintains records in a computer storage system to provide a printout of a public record rather than producing the original document. RSA 91-A:4, V. That said, if a requester can demonstrate substantial burden in terms of time or expense the public body may be required to produce the public record(s) in the format requested. See Menge v. City of Manchester, 113 N.H. 533 (1973) (City ordered to copy its computer tape instead of producing individual property tax card records); compare Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001) (Statute does not require public bodies to create new records); Taylor V. School Administrative Unit #55, 170 N.H. 322 (2017)(providing thumb drive complied with the Statute where the requester asked for the records to be sent by email)

b. Can the requester obtain a customized search of computer databases to fit particular needs

No, RSA 91-A:4,VII states: “Nothing in this chapter shall be construed to require a public body or agency to compile, cross-reference, or assemble information into a form in which it is not already kept or reported by that body or agency.” See Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001).

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The Statute provides: “If a computer, photocopying machine, or other device maintained for use by a public body or agency is used by the public body or agency to copy the governmental record requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the public body or agency. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of governmental records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged. RSA 91-A:4,IV.

3. Provisions for fee waivers

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

There is no reported case suggesting that public bodies have imposed prohibitive fees. But see Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001) (trial court accepted State's evidence that cost of creating a new data manipulation program would exceed $10,000, in denying right-to-know request on other grounds).

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

The Attorney General does not enforce the Statute. The Office advises state agencies that receive right-to-know requests, and it also responds to requests from the public for information about the Statute. The Attorney General has provided a helpful memorandum on the Right-to-Know Law which is available at its Web site (www.doj.nh.gov/publications/right_to_know).

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

The Statute provides for reasonable attorneys’ fees if the court finds that a public body "knew or should have known that the conduct engaged in was a violation of" the Statute. RSA 91-A:8,I. Should the court find that a public official or employee of a public body has acted in bad faith, it may award such fees personally against the public official or employee. Id. Costs are awarded if the court finds that the lawsuit was necessary to make the information available or proceeding open to the public. On the other hand, the court may award attorneys’ fees in favor of a public body if it finds that the lawsuit was in "bad faith, frivolous, unjust, vexatious, wanton, or oppressive." RSA 91-A:8,I-a.

In addition to awarding attorneys’ fees and costs, the court may invalidate action taken by a public body in violation of the Statute, and it may enjoin future violations of the Statute. RSA 91-A:8,II and III.

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

RSA 91-A:4, VII clarifies that there are no proactive disclosure requirements, and that the public body is only required to keep any publicly available information in the form it is normally kept or reported.

3. Records retention requirements

RSA 91-A:4,VI requires that records pertaining to lawsuits or threatened lawsuits be retained for at least 10 years. RSA 91-A:9 prohibits the destruction of “any information with the purpose to prevent such information from being inspected or disclosed in response to a request under this chapter.”

Entities subject to the Statute may have their own separate retention periods.

Courts also look to records that contain information with respect to which public bodies may meet in nonpublic session, as authorized by RSA 91-A:3,II (a)-(j), to be exempt from disclosure, e.g., records of the “hiring of any person as a public employee,” or “relating to the preparation for and the carrying out of emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life.”

The exemptions under RSA 91-A:5 can be general – e.g., “confidential, commercial, or financial information” – or specific – e.g., “personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy.”

The determination of whether the exemption applies or not is based on FOIA case law, although the Supreme Court has looked to FOIA cases in applying an exemption under section 5. E. g., Reid v. New Hampshire Attorney Gen., 169 N.H. 509 (2016). The Court has looked at the Reporters Committee Case, decided under FOIA, to rule that absent a specific provision requiring disclosure, records subject to the Statute must show “what its government is up to. Professional Firefighters of New Hampshire v. Local Government Center, Inc., 159 N.H. 699, 705 (2010). It has also looked to FOIA in deciding cases seeking access to law enforcement files. Murray v. New Hampshire Div. of State Police, 154 N.H. 579 (2006); Lodge v. Knowlton118 N.H. 574 (1978).

Minutes of non-public sessions of boards and agencies, if "in the opinion of 2/3 of the members present, divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself. . . . [this] information may be withheld until, in the opinion of a majority of [the Board's] members," the confidentiality is no longer necessary. RSA 91-A:3, III.

Catch-all exemption. RSA 91-A:5, IV. "Records pertaining to internal personnel practices; confidential, commercial or financial information; test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination; and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosures would constitute invasion of privacy. Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be effected." Notwithstanding this exemption, the Supreme Court has ruled with respect to "confidential, commercial, or financial" information that "these categorical exemptions mean not that the information is per se exempt, but rather that it is sufficiently private that it must be balanced against the public's interest in disclosure." Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 553 (1997); Lamy v. N.H. Public Utilities Commission, 152 N.H. 106 (2005) (records of names and addresses of residential customers filing voltage complaints exempt from disclosure; names and addresses of business customers must be disclosed); Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006)(report of investigation of Precinct employee); Reid v. New Hampshire Attorney Gen., 169 N.H. 509 (2016)(internal personnel practices records per se exempt).

Personal notes made by public officials or members of public bodies that do not have an official purpose, including notes and materials they make prior to, during or after public proceedings. RSA 91-A:5,VIII.

Preliminary drafts, notes, memoranda and other documents not in final form and not disclosed, circulated, or available to a quorum or a majority of public bodies. RSA 91-A:5, IX.

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

Pursuant to RSA 611-A:8,III, autopsy reports are available only to the Department of Justice in situations involving homicide investigations. Autopsy reports are "confidential medical records which shall not be released without authorization of next-of-kin." RSA 611-A:8,IV.

E. Business records, financial data, trade secrets

F. Contracts, proposals and bids

Contract records are public records unless they are exempt from the Statute because they relate to the "acquisition, sale or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community," RSA 91-A:3, II, (d), or they constitute a preliminary draft under RSA 91-A:5, IX. See Gallagher v. Town of Windham, 121 N.H. 156 (1981).

J. Emergency Medical Services records

K. Gun permits

L. Homeland security and anti-terrorism measures

The Statute addresses national security matters by exempting such records from disclosure and further providing that a limited release of such records "to persons whose health or safety may be effected" will not waive the exemption. RSA 91-A:5,IV and VI.

M. Hospital reports

N. Personnel records

Personnel files are not automatically exempt from disclosure. Personnel records are exempt if they pertain to "internal personnel practices . . . test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examinations; and personnel, medical, welfare, and other files whose disclosure would constitute invasion of privacy" are exempt. RSA 91-A:5, IV. To determine if the material meets this exemption, the court will apply “a two-part analysis of: (1) whether the material can be considered a ‘personnel file’ or part of a ‘personnel file’; and (2) whether disclosure of the material would constitute an invasion of privacy.” Reid v. New Hampshire Attorney Gen., 169 N.H. 509 (2016). Police personnel records are exempt. RSA 105:13-b.

Also exempt are records of the hiring, dismissal, promotion or compensation of a public employee or disciplining of such employee unless the employee consents to their disclosure. RSA 91-A:3, II (a) and (b). See Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006).

3. Applications

It depends on the nature of the position. See, e.g., Lambert v. Belknap County Convention, 157 N.H. 375 (2008), holding that applications to be appointed to fill unexpired term of county sheriff, an elective office, are public.

Q. Professional licensing records

R. Public utility records

Records relied on by the Public Utilities Commission in rulemaking are public. See Society for the Protection of N.H. Forests v. Water Supply and Pollution Control Commission, 115 N.H. 192 (1975). The names and addresses of residential customers filing voltage complaints are exempt, while the records of business customers are public. Lamy v. N.H. Public Utilities Commission, 152 N.H. 106 (2005).

S. Real estate appraisals, negotiations

1. Appraisals

2. Negotiations

Negotiations are probably exempt. See RSA 91-A:3,II(d) which permits nonpublic sessions concerning “[c]onsideration of the acquisition, sale, or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community.”

V. Tax records

W. Vital Statistics

RSA Ch. 5-C governs “vital” records. Section 9 reads:

Disclosure of Information From Vital Records. –
In order to protect the integrity of vital records, to ensure their proper use, and to ensure the efficient and proper administration of the system of vital statistics, the registrar or the custodian of permanent local records shall not permit inspection of, or disclose information contained in vital statistics records, or copy or issue a copy of all or part of any such record unless he or she is satisfied that the applicant has a direct and tangible interest in such record.

2. Marriage and divorce

3. Death certificates

4. Infectious disease and health epidemics

IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

The Statute is intended, and has been implemented, to minimize the need for formal procedures. Requests for records should be in writing and directed to an official of the public agency or public body from which the records are sought. RSA 91-A:4, IV; RSA 91-A:7.

2. Does the law cover oral requests?

There is no requirement that a request be in writing, but it is advisable to do so to minimize the potential for misunderstanding and delay. See Brent v. Paquette, 132 N.H. 415 (1989) (no evidence plaintiff made request other than bare assertion he telephoned).

Regardless of whether the request is oral or in writing, the public body may require an appointment to inspect records. Brent v. Paquette, 132 N.H. 415 (1989). Moreover, under RSA 91-A:4,IV, the public agency or public body is required to disclose the records or respond to the requester in writing

3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

Remedies for Delay. The Statute provides remedies to "any person aggrieved by a violation of this chapter." RSA 91-A:7. The court is authorized to award attorneys’ fees if the public body "knew or should have known that the conduct engaged in was a violation of this chapter." RSA 91-A:8, I.

1. Statutory, regulatory or court-set time limits for agency response

The Statute contains specific time limitations for response to a request for records. "If a public body is unable to make a public record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgement of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied." RSA 91-A:4, IV. The Supreme Court has held that an agency may be justifiably "unable" to produce a record immediately if it is simply too busy or is understaffed. Brent v. Paquette, 132 N.H. 415 (1989); Gallagher v. Town of Windham, 121 N.H. 156 (1981) (permitting removal for use by government official in discharge of official duties).

2. Informal telephone inquiry as to status

3. Is delay recognized as a denial for appeal purposes?

The Statute does not address this issue. But in ATV Watch v. N.H. Dep’t of Resources & Econ. Dev., 155 N.H. 434 (2007), the Court ruled that it was error for the trial court to find that the state agency had complied with the Statute by responding to the request “in a reasonable manner.” The Court held that the 5-day response time in RSA 91-A:4,IV “is absolute.”

a. Denial

b. Fees for records

c. Delays

d. Patterns for future access (declaratory judgment)

Yes, see RSA 91-A:8,V. “The court may also enjoin future violations of this chapter, and may require any officer, employee, or other official of a public body or public agency found to have violated the provisions of this chapter to undergo appropriate remedial training, at such person or person's expense.”

2. Time limits for filing appeals

3. Contact of interested amici

G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

A. Who may attend?

RSA 91-A:2,II states: “Subject to the provisions of RSA 91-A:3, all meetings, whether held in person, by means of telephone or electronic communication, or in any other manner, shall be open to the public.” RSA 91-A:3 provides for “nonpublic sessions.”

B. What governments are subject to the law?

1. State

2. County

3. Local or municipal

C. What bodies are covered by the law?

The Statute applies to public agencies and public bodies, defined terms under RSA 91-A:1-a, V and VI. A “public agency” covers “any agency, authority, department, or office of the state or of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision.” A Public body” includes: “(1) The general court including executive sessions of committees; and including any advisory committee established by the general court. (2) The executive council and the governor with the executive council; including any advisory committee established by the governor by executive order or by the executive council. (3) Any board or commission of any state agency or authority, including the board of trustees of the university system of New Hampshire and any committee, advisory or otherwise, established by such entities. (4) Any legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto. (5) Any corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.”

Under RSA 91-A:1-a,I an “advisory committee” is “any committee, council, commission, or other like body whose primary purpose is to consider an issue or issues designated by the appointing authority so as to provide such authority with advice or recommendations concerning the formulation of any public policy or legislation that may be promoted, modified, or opposed by such authority.”

The Supreme Court has ruled the some Quasi-public entities are subject to the Statute. See, e. g., Professional firefighters of New Hampshire v. HealthTrust, Inc., 151 N.H. 501 (2004).

a. What officials are covered?

b. Are certain executive functions covered?

Yes, the Statute applies to the Governor acting together with the Governor's Council as well as the Governor's Council alone, including any advisory committee established by either the Governor or the Governor's Council, as well as any state public body. RSA 91-A:1-a,VI(b).

c. Are only certain agencies subject to the act?

2. Legislative bodies

The Statute applies to the Legislature. RSA 91-A:1-a,VI. However, its definition of “meeting” excludes “[a] caucus consisting of elected members of a public body of the same political party who were elected on a partisan basis at a state general election or elected on a partisan basis by a town or city which has adopted a partisan ballot system pursuant to RSA 669:12 or RSA 44:2.”

3. Courts

4. Nongovernmental bodies receiving public funds or benefits

In Professional Firefighters of New Hampshire v. HealthTrust, Inc., 151 N.H. 501 (2005), the Court cited the fact that HealthTrust received money from governmental entities as one of five factors that it considered in holding that HealthTrust was subject to the Statute.

In Professional Firefighters (see above), the fact that HealthTrust’s board of directors included governmental officials was another factor considered by the Court in holding that HealthTrust was subject to the Statute.

6. Multi-state or regional bodies

RSA 91-A:1-a,VI(e) defines “public body” to include: “Any corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.

7. Advisory boards and commissions, quasi-governmental entities

8. Other bodies to which governmental or public functions are delegated

In Professional firefighters of New Hampshire v. HealthTrust, Inc., 151 N.H. 501 (2005), one of the five factors the Court relied on in ruling that HealthTrust was subject to the Statute was the fact that it performed an “essential governmental function”- health insurance to public employees through a pooled risk management program.

9. Appointed as well as elected bodies

D. What constitutes a meeting subject to the law

Generally. RSA 91-A:2,I defines a "meeting" as "the convening of a quorum of the membership of a public body, as defined in RSA 91-A:1-a,VI, or a majority of the members of such body if the rules of that body define "quorum'' as more than a majority of its members, whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously, subject to the provisions set forth in RSA 91-A:2, III, for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power. A chance, social, or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters."

b. What effect does absence of a quorum have?

2. Nature of business subject to the law

The Statute states that a “meeting” is for “purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power.” RSA 91-A:2,I.

b. Deliberation toward decisions

3. Electronic meetings

The Statute provides for electronic meetings under limited circumstances. RSA 91-A:2,III reads:
“A public body may, but is not required to, allow one or more members of the body to participate in a meeting by electronic or other means of communication for the benefit of the public and the governing body, subject to the provisions of this paragraph.
(a) A member of the public body may participate in a meeting other than by attendance in person at the location of the meeting only when such attendance is not reasonably practical. Any reason that such attendance is not reasonably practical shall be stated in the minutes of the meeting.
(b) Except in an emergency, a quorum of the public body shall be physically present at the location specified in the meeting notice as the location of the meeting. For purposes of this subparagraph, an "emergency'' means that immediate action is imperative and the physical presence of a quorum is not reasonably practical within the period of time requiring action. The determination that an emergency exists shall be made by the chairman or presiding officer of the public body, and the facts upon which that determination is based shall be included in the minutes of the meeting.
(c) Each part of a meeting required to be open to the public shall be audible or otherwise discernable to the public at the location specified in the meeting notice as the location of the meeting. Each member participating electronically or otherwise must be able to simultaneously hear each other and speak to each other during the meeting, and shall be audible or otherwise discernable to the public in attendance at the meeting's location. Any member participating in such fashion shall identify the persons present in the location from which the member is participating. No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
(d) Any meeting held pursuant to the terms of this paragraph shall comply with all of the requirements of this chapter relating to public meetings, and shall not circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.
(e) A member participating in a meeting by the means described in this paragraph is deemed to be present at the meeting for purposes of voting. All votes taken during such a meeting shall be by roll call vote.”

e. Social media and online discussion boards

E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

b. Notice

The statute requires at least 24 hours public notice, unless an emergency meeting is held. RSA 91-A:2,II. RSA 91-A:2,II further provides that “a meeting of a legislative committee is held, publication made pursuant to the rules of the house of representatives or the senate, whichever rules are appropriate, shall be sufficient notice.” For other public meetings, notice “shall be posted in 2 appropriate places one of which may be the public body's Internet website, if such exists, or shall be printed in a newspaper of general circulation in the city or town” in which the meeting is to be held. RSA 91-A:2,II.

Failure to comply with the notice requirement may result in invalidation of the board's action. Stoneman v. Tamworth Sch. Dist., 114 N.H. 371 (1974); Carter v. City of Nashua, 113 N.H. 407 (1973).

c. Minutes

Minutes are public record. RSA 91-A:4,I. The Statute does not specify the content of minutes of public meetings. That said, it is fair to assume minutes will include any motions and votes on same, such as a motion to go into nonpublic session, including the exemption that permits such session. See RSA 91-A:3,I(b)(“Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll call, and shall require the affirmative vote of the majority of members present”). Minutes of nonpublic sessions shall record “all actions {and] shall be promptly made available for public inspection, except as provided in [RSA 91-A:3,III].”

2. Special or emergency meetings

a. Definition

The Statute defines “emergency” to mean “a situation where immediate undelayed action is deemed to be imperative by the chairman or presiding officer of the public body, who shall post a notice of the time and place of such meeting as soon as practicable, and shall employ whatever further means are reasonably available to inform the public that a meeting is to be held.” RSA 91-A:2,II.

b. Notice requirements

Emergency meetings require “a notice of the time and place of such meeting as soon as practicable, and shall employ whatever further means are reasonably available to inform the public that a meeting is to be held.” RSA 91-A:2,II. The Statute does not exempt emergency meetings from the provision giving the court the discretion to invalidate action taken at such meeting. RSA 91-A:8, II.

c. Minutes

3. Closed meetings or executive sessions

a. Definition

Generally. The Statute permits public bodies to meet in "nonpublic session," only for matters set forth in RSA 91-A:3,II.

Nonpublic Sessions Authorized by the Statute.

The dismissal, promotion or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him, unless the employee affected (1) has a right to a meeting and (2) requests that the meeting be open in which case the request shall be granted. RSA 91-A:3, II(a). See Appeal of Plantier, 126 N.H. 500 (1985). (employee with a right to meeting must be given notice of the meeting and its purpose.); Johnson v. Nash, 135 N.H. 534 (1992) (public posting of meeting without indicating topics to be discussed insufficient). Note, discussions regarding a public official, as opposed to a public employee, do not qualify for this exemption.

"The hiring of any person as a public employee." RSA 91-A:3,II(b).

"Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the body or agency itself, unless such person requests an open meeting. This exemption shall extend to any application for assistance or tax abatement or waiver of a fee, fine, or other levy, if based on inability to pay or poverty of the applicant.” RSA 91-A:3,II(c).

"Consideration of the acquisition, sale, or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community." RSA 91-A:3,II(d).

“Consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the public body or any subdivision thereof, or against any member thereof because of his or her membership in such public body, until the claim or litigation has been fully adjudicated or otherwise settled. Any application filed for tax abatement, pursuant to law, with any body or board shall not constitute a threatened or filed litigation against any public body for the purposes of this subparagraph.” RSA 91-A:3,II(e).

"Consideration of applications by the adult parole board under RSA 651-A. RSA 91-A:3,II(f).

"Consideration of security-related issues bearing on the immediate safety of security personnel or inmates at the county correctional facilities by county correctional superintendents or their designees. RSA 91-A:3,II(g).

"Consideration of applications by the business finance authority under RSA 162-A:7-10 and 162-A:13 where consideration of an application in public session would cause harm to the applicant or would inhibit full discussion of the application." RSA 91-A:3,II(h).

“Consideration of matters relating to the preparation for and the carrying out of emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life.” RSA 91-A:3,II(i).
“Consideration of confidential, commercial, or financial information that is exempt from public disclosure under RSA 91-A:5, IV in an adjudicative proceeding pursuant to RSA 541 or RSA 541-A.” RSA 91-A:3,II(j).

b. Notice requirements

Notice requirements are the same as for regular meetings. Penalties are the same as for any other violation of the Statute. See RSA 91-A:8; Voelbel v. Town of Bridgewater, 140 N.H. 446 (1995); Carter v. City of Nashua, 113 N.H. 407 (1973); Stoneman v. Tamworth Sch. Dist., 114 N.H. 371 (1974).

c. Minutes

Requirement of Minutes. Minutes of proceedings in nonpublic session "shall be kept and the record of all actions shall be promptly made available for public inspection." RSA 91-A:3,III.

Minutes and decisions reached in nonpublic session are to be disclosed within 72 hours of the meeting. The only exception to this requirement is that if the public body "by recorded vote of 2/3 of the members present . . . determine[s] that divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself, or render the proposed action ineffective, or pertain to terrorism, more specifically, to matters relating to the preparation for and the carrying out of all emergency functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life." RSA 91-A:3,III.

f. Tape recording requirements

F. Recording/broadcast of meetings

1. Sound recordings allowed

Persons attending the meetings have the right "to use recording devices, including, but not limited to, tape recorders, cameras and videotape equipment." RSA 91-A:2,II. Although the Statute does not specifically authorize live broadcast, it would appear that news organizations may do so if the broadcast can be accomplished by a "recording device." An audio recording of a public meeting to be used to compile the minutes is a public record, and the public has a right to listen to it and make a copy. RSA 91-A:4, II.

2. Photographic recordings allowed

G. Access to meeting materials, reports and agendas

The Statute exempts from disclosure all “preliminary drafts, notes, and memoranda and other documents not in their final form,” which were “not disclosed, circulated, or available to a quorum or a majority of the members of a public body.” RSA 91-A:5, IX.

H. Are there sanctions for noncompliance?

II. Exemptions and other legal limitations

A. Exemptions in the open meetings statute

1. Character of exemptions

The exemptions are specific. The Statute requires open meetings except for meetings that address specific matters that the legislature has determined should not be discussed in public to avoid potential harm to one or more individuals, the public or a governmental entity,

2. Description of each exemption

The Statute excludes from the definition of "meeting" the following:
(1) “A chance, social or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters.”
(2) “Strategy or negotiations with respect to collective bargaining;
(3) Consultation with legal counsel;
(4) A caucus consisting of elected members of a public body of the same political party who were elected on a partisan basis at a state general election or elected on a partisan basis by a town or city which has adopted a partisan ballot system pursuant to RSA 669:12 or RSA 44:2; or
(5) Circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting; provided, that nothing in this subparagraph shall be construed to alter or affect the application of any other section of RSA 91-A to such documents or related communications.” RSA 91-A:2,I.

III. Meeting categories - open or closed

A. Adjudications by administrative bodies

1. Deliberations closed, but not fact-finding

2. Only certain adjudications closed, i.e. under certain statutes

The Statute is not framed in terms of “adjudications.” RSA 91-A:3 provides for nonpublic sessions concerning some matters that could take place a adjudications, e.g., subparagraph II(a)(“dismissal” or “disciplining” a public employee); II(c)(“Matters which, if discussed in public, would likely affect adversely the reputation of any person”).

D. Federal programs

E. Financial data of public bodies

There is no case law on this issue but such matters would probably support a nonpublic session. See RSA 91-A:5, IV. As for trade secret records, see CaremarkPCS Health, LLC v. New Hampshire Dep't of Admin. Servs., 167 N.H. 583 (2015).

I. Licensing examinations

J. Litigation, pending litigation or other attorney-client privileges

The Statute exempts from the definition of "meeting" "consultation with legal counsel." RSA 91-A:2, I(c). Further, a public body may go into nonpublic session for "consideration or negotiation of pending claims or litigation which has been threatened or filed against the body or agency or any subdivision thereof, or against any member thereof because of his membership in such body until the claim or litigation has been fully adjudicated or otherwise settled.." RSA 91-A:3,II(e).

A town planning board that went into nonpublic session to review and discuss a letter and memorandum from its counsel did not fit within the “consultation with legal counsel” exemption and violated the Statute. Ettinger v. Town of Madison Planning Bd., 162 N.H. 785 (2011).

M. Patients, discussions on individual patients

N. Personnel matters

The "dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him" may be held in a nonpublic session, as may discussions regarding "the hiring of any person as a public employee." RSA 91-A:3,II(a) and (b). However, if the employee to be dismissed has a right to a meeting, he may require an open meeting. RSA 91-A:3,II(a).

3. Dismissal, considering dismissal of public employees

O. Real estate negotiations

"Consideration of the acquisition, sale, or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community," may be conducted in nonpublic session. RSA 91-A:3,II(d). This provision should be limited to cases where disclosure of discussions would prevent or frustrate consummation of the proposed transaction, or inflate its cost to the public.

P. Security, national and/or state, of buildings, personnel or other

The Statute permits nonpublic sessions for consideration of (1) “security-related issues bearing on the immediate safety of security personnel or inmates at the county correctional facilities by county correctional superintendents or their designees,” and (2) “matters relating to the preparation for and the carrying out of emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life.” RSA 91-A:3,II(g) and (i). See also RSA 91-A:5, VI.

A. When to challenge

RSA 91-A:7 provides that when a court finds that "time probably is of the essence, he may order notice by any reasonable means, and he shall have authority to issue an ex parte order when he shall reasonably deem such an order necessary to ensure compliance with the provisions of this chapter." RSA 91-A:8, III authorizes the court to enjoin future violations of the Statute.

2. Applicable time limits

3. Contents of request for ruling

The Statute does not require that a person initiating the court action be represented by counsel, and it states that a petition "shall be deemed sufficient if it states facts constituting a violation of this chapter." RSA 91-A:7.

2. Time limits for filing appeals

3. Contact of interested amici

V. Asserting a right to comment

The Statute does not address any of the issue that follow. By procedural rules and practice public bodies typically announce by notice and hold meetings at which the public may comment and meetings where the public may only listen.